Autore
Marra, Realino

Titolo
Ultima meditazione sul realismo giuridico. Da Jerome Frank ad Alf Ross: il realismo normalizzato
Periodico
Materiali per una storia della cultura giuridica
Anno: 2025 - Fascicolo: 2 - Pagina iniziale: 529 - Pagina finale: 564

In this concluding essay on the two established realisms of the tradition, the Scandinavian and the American, the author addresses the contributions of Jerome Frank and Alf Ross. The former draws from "Gestalttheorie" to argue that judges’ cognitive activity about the facts of a case is strongly conditioned by their subjective perceptions. As a skeptic of facts Frank thus thinks that certainty and predictability of law are illusions. He challenges the positions of other American realists who had instead advocated for legal science a model of predictive knowledge, such as that practiced by the natural sciences. But from this critique Frank then goes on to completely deny the possibility of any other strategies of cognitive objectivity for legal science, and for all social sciences in general. In the most important work of the two realisms of the tradition, "On Law and Justice" by the Dane Alf Ross, prediction is confirmed as the purpose of legal science, and above all is argued for the idea of converting legal positivism into a realist theory of sources that recognizes judicial law as having a high degree of positivity, also admitting the influence of doctrine. Marra thinks that the label 'realism' is too demanding to assume that the extension of regulatory mechanisms from the legislature to judges and doctrine is sufficient to justify it. If that designation is to be given any meaning, there is no alternative; the problem of reality has always been the most important one in philosophy, i.e. that of being, in the main meaning of the term, the existential one: what is there, what exists, what is real? In the face of one of the most complex social practices in the history of the social world (intertwining of subjects, their insights into the world and evaluations, signifying activities, events) only a transdisciplinary approach, aimed at the cultural-historical understanding and explanation of the conduct of acting subjects in the area of legal relations, can restore meaning to the name 'legal realism'.



SICI: 1120-9607(2025)2<529:UMSRGD>2.0.ZU;2-3
Testo completo: https://www.rivisteweb.it/download/article/10.1436/118867
Testo completo alternativo: https://www.rivisteweb.it/doi/10.1436/118867

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